from the give-it-a-go dept

There's a new set of top politicians coming in to form the European Commission, one of the three bodies that run the European Union. Next week, the European Parliament -- another of those three bodies -- gets to grill them on their suitability. It's largely theater, since rejecting a Commissioner-designate is pretty heavy, and rarely happens. Still, if nothing else, it's a chance to put embarrassing questions to people who will soon be powerful and hard to call to account. Sadly, though, it's not something that the public can participate in. The Pirate Party's newly-elected Member of the European Parliament, Julia Reda, wants to change that, and has created a site called "What would you ask?". Here's the explanation:

From September 29 to October 7th, the European Parliament gets to vet the designated members of the EU Commission: The people who will be drafting laws for 500 million people for the next five years. I believe: The people of Europe should also be allowed to ask questions!
That's why I'm asking YOU: If you had the chance, what would you ask the Commissioners responsible for internet policy?

There are two Commissioners involved: Andrus Ansip, Designated Vice President for the Digital Single Market, who oversees the breaking-down of borders between EU member states on the Internet, and Günther Oettinger, Designated Commissioner for Digital Economy and Society, responsible for the telecom sector, copyright, start-ups, e-government, security, Internet governance, and the European Commission's own computing services. Rather worryingly, Ansip was an unabashedsupporter of ACTA when it was being pushed through a couple of years ago, while questions have been raised about Oettinger's experience and understanding of the digital world.

Reda adds:

I will forward the top-voted questions to the Commissioners and ask them to reply. But please note: Since as an individual MEP even ﻿I have very limited opportunity to ask questions, I cannot promise I will be able to pose these questions in the actual committee hearing.

Still, given that previously the public had precisely zero opportunity to pose questions to these people, even a small chance is worth taking.

from the i-see-you dept

With all that's gone on with the NSA leaks, one thing has been made abundantly clear: the idea of operating in the world without having eyes on us or digging through our motives, is dead. The NSA, admitting it or not, has unilaterally decided that we don't deserve privacy and that our daily lives are an open book should they have any contrived reason to take a peek. Even members of Congress appear to be under such scrutiny.

The NSA sent someone bearing the nametag “Neal Z.” to the University of New Mexico’s Engineering and Science Career Fair today, in the hopes of recruiting young computer geniuses to help manage the yottabytes of data it is collecting about you. But instead of eager young applicants, Mr. Z. encountered University of New Mexico alumnus Andy Beale and student Sean Potter, who took the rare opportunity of being in the room with a genuine NSA agent to ask him about his employer’s illegal collection of metadata on all Americans. Mr. Z. did not like that one bit.

Should you be unable to see the video, the exchange is fairly polite, if persistent, from behind the camera. The NSA employee, on the other hand, is both combative and at one point grabs the interviewers phone. Prior to that, the employee repeats the discredited claim that the NSA does not collect intelligence on US citizens, which by now everyone knows is simply false. Then the name calling starts, followed by the attempt to grab the phone. The two interviewers were subsequently ejected from the building under the notion that they were causing a disturbance. The NSA employee was clearly unhappy about being videotaped and probed.

And it's easy to sympathize with him as a US citizen, since the organization he works for has done the same thing to American citizens. We're brothers of a kind, both having to endure an undue yet meticulous examination of our activities as we simply attempt to go about our lives, working and living less free than we were meant to be. That the irony appeared to be lost on our NSA friend isn't terribly surprising to me. The Ministries of Oceania are not known for their sense of humor, after all.

from the too-bad dept

We already noted that President Obama did his Google Hangout today, and surprisingly admitted that patent trolls are a problem. It's worth noting that he did actually get some directly challenging questions, including about gun control, immigration and a lack of transparency (especially on drones). Oh, and also about whether or not we should still have a penny (President Obama: "I don't know!"). That last one was actually the most popular question that people voted on, as compiled by Derek Khanna over at Townhall.com.

President Obama more or less avoided the question about drones -- other than to insist that no drones had been used to target people in the US and that the rules were different elsewhere. He also continued to insist that his administration is the most transparent in history, thanks to things like the White House visitor logs being released publicly. That, of course, is just one small part of transparency, and it's clear that the administration is absolutely failing on a number of different transparency issues (and is notably horrible at responding to Freedom of Information Act requests).

What's disappointing, though, is that many of the other top questions in that list didn't get asked (including the question about copyright issues that we'd mentioned, despite being the 8th most popular question by votes). Obviously, there is only a limited amount of time, and I actually think that Obama did a reasonably good job in actually responding to the questions asked with a bit more depth than I expected. It still wasn't that deep, but it wasn't nearly as superficial as I expected. And, at the very least, it gave a chance for him to hear some pointed questions on these issues. Hopefully, he decides to do this more than once a year, so that some of these other questions can actually be asked.

As a side note, I saw some people complain about the final questions which were more "personal" in nature, though I didn't think it was that bad. Yes, perhaps you could argue that it took time away from some of those serious questions, but there is something to be said for at least allowing a bit of personality to come through in these discussions. I thought the most amusing part, though, was that when John Green (of Vlogbrothers and DFTBA Records) asked the President to help name his expected child, the President refused, joking that if they ruled against him it would upset the child for the rest of their life -- but then he did note that they should make sure the child "doesn't forget to be awesome" (which is what DFTBA stands for). Obviously, he was saving up something about DFTBA, but that was still a nice touch.

from the doubtful,-but... dept

If you haven't seen the news yet, President Obama is going to do a Google Hangout on Thursday in which he'll answer some presubmitted questions. The White House and YouTube have set up a ridiculously clumsy submission system, allowing people to submit questions by text or by video and then anyone can vote on them, though browsing the questions or even linking to any particular question appears to take a Herculean effort. That said, a few people have asked some questions about copyright (you can do a search on the submission page). One interesting one, comes from Public Knowledge, in which they directly ask him about fixing the problems with anti-circumvention rules in the DMCA, such as those we've been talking about concerning phone unlocking. That link above should allow you to vote for the question. You can also see the video of the question below. It would be nice to see that question get a lot of votes, and to see if the President would be willing to actually answer the question.

There you have it. Violent video games are a "bigger safety threat" than guns, according to two out of three respondents. Seems pretty open and shut. Everyone cross out the word "gun" on your pet piece of legislation and replace it with "video game!" The nation is saved!

Many of you may be reaching for your guns/lower jaw/commenting implement. Before we start firing off mouths/angry wall o' text screeds/bullets, let's have a look at the methodology.

PPP surveyed 800 voters nationally from January 31st to February 3rd. The margin of error for the survey is +/-3.5%. We oversampled 416 Democratic and 508 Republican primary voters with margins of error of +/-4.8% and +/-4.4% respectively. In Iowa between February 1st and 3rd we interviewed 313 Democratic and 326 Republican primary voters with margins of error of +/-5.5% and +/-5.4% respectively. This poll was not paid for or authorized by any campaign or political organization. PPP surveys are conducted through automated telephone interviews.

This certainly seems above board. So, why do the results seem so surprising? Well, maybe it's the prevailing demographics of those surveyed. As pointed out in the comments at Kotaku, there are two factors that skew the results.

1. 72% of the respondents are older than 45.

2. The "violent video games" question was only posed to Republican primary voters.

Now, this data pretty much agrees with the stereotypical view that older people and Republicans trust guns more than they trust violent video games. Sure, there are plenty of outliers along the way, but the Republican Party has generally fought gun control laws, and older people are generally more distrustful of recent technology. In fact, given a narrow enough demographic, you could probably get poll results that indicates that "most Americans" believe cellphones are a bigger safety threat than depleted uranium.

So, what PPP has actually done is gift-wrapped a set of numbers useful for preaching to the converted. All it does is add to noise that surrounds this heated topic. Considering there's nothing else resembling that question in the other several dozen pages, one wonders why the question appears at all. Truly bizarre.

from the more-questions-please dept

Following up on this first experiment with the Techdirt Book Club -- where we're going to host a discussion around Rebecca MacKinnon's Consent of the Networked -- I've added some potential questions on the Step2 discussion page where people can add their own questions and vote existing questions up or down. We'll be passing along these questions to Rebecca shortly for a discussion next week. Head on over and ask your questions or vote on existing questions.

from the wonder-if-they'll-answer-any-of-them dept

Sean Flynn from the Program on Information Justice and Intellectual Property at American University, sent over the list of questions that he and a group of others concerned about ACTA are planning to ask the ACTA negotiators today in a meeting in Switzerland, where the latest round of ACTA negotiations are under way. The meeting is set to take place at 7pm Swiss time, which should be about 10am this morning California time. I have no idea how many of these questions will get asked or answered -- or if it will make any difference, but I figured that some of you might be interested in reading the questions:

Will negotiators commit to continue releasing the text of the Agreement following completion of this week's negotiating round and subsequently until the completion (or abandonment) of negotiations?

Are negotiators reviewing the text of the Agreement to ensure it is fully consistent with the WTO TRIPS Agreement? Will the WTO or other independent legal experts be asked to review the text of the Agreement to ensure it is legally consistent with WTO rules? Will you provide clear and objective information regarding the evidence base upon which ACTA is purportedly justified, as far as international law, access to medicines and Internet are concerned?

Criminal sanctions are being negotiated, which imply the usage of police & judiciary systems, as proven by the presence among the negotiators of the EU Presidency. How can you justify any legitimacy for criminal sanctions (which highly impact fundamental freedoms) being negotiated outside of any democratic frame, in the secrecy of what is much more than a "trade agreement"?

What is the prevailing definition of a 'counterfeit' amongst negotiators? With respect to pharmaceuticals, is it the official position of negotiators that medicines which are suspected of patent infringement are counterfeit? If not, will you commit to ensure that the entirety of ACTA excludes patents from the scope of the agreement as the inclusion of patents is unrelated to the issue of counterfeit, and poses significant risks for access to medicines in developing countries?

Should customs authorities be authorized to seize medicines in 'transit countries', even when the medicines do not infringe any laws in the producing or importing countries? Will you commit to ensure that any inclusion of ex officio action and/or in-transit seizures is optional and not mandatory for countries? If permitted, do negotiators maintain that customs officials in exporting, transit or importing countries are capable of determining whether medicines infringe patents or whether a pharmaceutical product is 'confusingly similar'? Should there be any anti-abuse provisions included?

Could negotiators list out the relevant anti-abuse provisions in ACTA to ensure that rights holders do not use the Agreement to expand intellectual property protection for products, including medicines? ACTA currently contains no pro-consumer provisions and minimal protections for an alleged infringer, alongside maximum privileges and incentives for a right-holder to allege infringement (including extraordinarily limited liability for abuse of recourse measures). The enforcement provisions are universally mandatory while the protections are optional. There are virtually no references to exceptions and limitations, or to TRIPS flexibilities and safeguards. Do negotiators feel that sufficient balance has been achieved under the Agreement?

Are negotiators aware that the Agreement could create third party liability for suppliers of active pharmaceutical ingredients whose materials may be used in mislabeled products without their knowledge? What are the reasons for holding suppliers of active pharmaceutical ingredients unknowingly liable for mislabeled products?

ACTA can become a very strict text should certain proposals be followed, not leaving much room to maneuver for its application. Are contracting parties foreseeing to include in the agreement exceptions to preserve the public interest or flexibilities allowing for adaptation to different national realities? Will you remove institutional measures in which ACTA Member countries attempt to export heightened TRIPS-plus IP protections to other countries, and in particular developing countries

How do you guarantee that policies required to benefit from liability safe harbour for Internet service/access providers won't have the effect to force them to restrict fundamental freedoms -- such as freedom of expression and communication, privacy, and the right to a fair trial -- turning them, via contractual policies, into private copyright police/justice?

There have been no open hearings or other engagements with civil society since the text was released. Will you commit for the establishment of consistent mechanisms for the ongoing engagement of civil society? More generally, how are you going to fix the process to encourage greater public deliberation on the record, with access to text, and in a meaningful setting? And how are you going to fix all of the specific concerns raised in the previous questions and in all the critics upon ACTA made until now?

This is a pretty good list of questions if you're trying to understand just what is wrong with ACTA so far. Separately, Sean also included the presentation that he's giving in Switzerland about concerns over how ACTA will impact generic (legal) drugs in transit:

from the am-I-missing-something? dept

A bunch of folks have sent in the story in The Register about Jim Griffin's appearance at the World Copyright Summit, where he apparently told the crowd that "tens of thousands" of students at universities have agreed to voluntarily pay for Choruss. But, unfortunately, nobody seems to know what it is. Plenty of folks have been asking for an actual description of what it is -- and every time we're not told anything other than that it's "an experiment" that we're not to criticize. So, I'm curious who these tens of thousands of students are, and exactly what they've signed up for. If any of them is willing to share with us the details of what they signed, that would be great.

At one time, we were told that Choruss would be mandatory, but lately, Griffin has suggested that it will be voluntary. A voluntary system is much better, so that's definitely a step in the right direction, if that's true. But there are still plenty of other problems with such a system, many of which I've outlined elsewhere. It still seems like the entire program is based on a negative benefit ("you won't get sued") rather than a positive incentive ("here's a reason to give money in exchange for something you want") and a distortionary effect on the market (i.e., inserting unnecessary bureaucracy into a market, such that artists will actually make less). But, the fact that supposedly tens of thousands of students have agreed to pay for this when no details of what "this" is have been offered seems quite odd.

Separately, I should note that in our last post about Choruss, we solicited questions to be sent to Griffin which he has promised to answer. Due to my own hectic travel schedule, I haven't had time to go through the responses yet and whittle the list down to a more reasonable level, but I'm hoping to do that shortly. Alternatively, Griffin is free to answer questions and discuss these issues in the comments, but to date he has preferred not to do so, which is his right, of course. Still, if you have any additional questions for Griffin, feel free to add them in the comments, and I'll include them in the potential list (which will be narrowed down, so as not to overwhelm Griffin).

from the ask-away dept

It's no secret that I think Jim Griffin's plan for Choruss -- to set up a licensing system for P2P -- isn't just grossly flawed, but dangerous in many ways. We discussed at length why the very idea of any sort of licensing (i.e., a "tax") on online music is a bad idea. We've also worried about the apparent bait-and-switch nature of the plan -- in that, while it would grant either "covenants not to sue" or (potentially) "licenses" for any file sharing you do, it wouldn't stop the recording industry from still trying to shut down file sharing apps as illegal.

A few months back, I finally met Jim and was still left with many, many questions about the program -- especially because I felt that when anyone tried to pin him down on any particular bad idea that's been associated with the project, he would cut off the discussion by saying, "we're just experimenting -- so just let us get data before you criticize." And this, in fact, is a part of the problem. Rather than discussing the merits of any particular idea, Griffin keeps suggesting that -- despite evidence, history or theories about how various license programs work -- none of that is relevant to discuss until he's got data on his particular experiment. The way the plan is structured is that different (as yet unnamed) universities and colleges will begin testing Choruss this fall -- and each university will set it up how they see fit, in order to get comparative data. Thus, some could make it compulsory. Some could make it voluntary. Some could charge a lot. Some could bundle it with something else. Some could charge a flat fee. Some could charge a per download fee. Some could charge a per listen fee. But, if you try to dig down into the problems with any of these, Griffin has just said, "well, we're just experimenting, and we don't know if it's a good idea or not." Unfortunately, this avoids allowing us to discuss the details of why the concept is troubling, because we're told repeatedly it's just an experiment.

Jim Griffin to answer questions

That said, in an email exchange, Griffin agreed that if we asked folks at Techdirt what questions they had about the program, he would answer them -- and I hope that we can get more detailed answers. Now, to say our email conversation has been without conflict would be incorrect, and there was a bit of a misunderstanding about the timing of us soliciting questions (I had hoped to do it as a part of The Free Summit, which he was scheduled to attend, but for perfectly legitimate reasons, he was unable to attend at the last minute). But Griffin says he wants to answer whatever questions we have, and I'd like to send him some good ones.

My own concerns

To kick it off though, I'm going to share an edited/updated version of the last email I sent Griffin, after he asked again why I was so against Choruss. In pitching Choruss, Griffin likes to tell the story of the founding of SACEM, the very first collective licensing society. He talks about how since restaurants benefited from the music, they should pay for that benefit -- and how that's the basis of every collection society since: any place/service that benefits from music should pay for that benefit. I have serious qualms about that thinking, and here's why:

My worries about Choruss come from a few different angles. I think any sort of collective/group licensing scheme involving such a third party is an economically inefficient, and unnecessary solution, that ends up doing more harm than good. I know you like to tell the story of SACEM. To me, that's a horror story. It's a story of how to create a system that leads to massive wasted resources, inefficiency, a reliance on a bad (but easy) business model, followed quite quickly by regulatory capture that leads to an ever increasing inefficiency. Look at what SACEM has resulted in, and all I see are massive inefficiencies. The idea of adding to that legacy concerns me. If you look at collections societies, over time they just keep trying to increase how much they collect, and will often lean on the government for help in doing so. The story of PRS in the UK is instructive here.

My concern is specifically that we're seeing other business models that are working tremendously well. I know you were unable to stay for my keynote in Nashville, but I went through examples of many different artists (small, medium and big) who were embracing new business models to tremendous success -- none of which relied on any sort of licensing proposal.

So, then, along comes a licensing plan where I need to pay (and, yes, I know this isn't determined yet and experiments will occur) say... $5/month for Choruss. Now suddenly that's $60/year that I'm paying for music (some of which gets siphoned off by the bureaucracy in the middle, even if it's a non-profit, just for administration) that relies on some magic formula to figure out who it goes to. I'm now less inclined to spend additional money directly with my favorite artists, because I've already spent the money via Choruss. My favorite artists get less money (and I'm reliant on your system to make sure that my favorite artists are actually rewarded). My money is spent less efficiently, and now there's a group in the middle who has every incentive in the world (even as a non-profit) to try to get an ever increasing part of the pie.

That just doesn't make sense to me.

You talk about the two issues: collecting a pool of money and distributing it efficiently. What's wrong with letting the market do that? People are giving money, gladly, to the artists who give them a reason to buy. That's your efficient collection and distribution system all in one. Except it doesn't need a middleman like Choruss.

The problem the recording industry faces isn't that there hasn't been an effective licensing system in the middle. It's that they weren't giving people a reason to buy. A licensing scheme isn't a reason to buy. It's a removal of a threat. That's negative value (we won't sue!), not positive value (here's additional scarce value you want to pay for). The artists I highlighted in my presentation were all giving positive reasons to buy. I'm afraid that focusing on a system like yours focuses on that negative reason to buy (you won't get sued!) rather than the positive reason (check out all the benefits I get).

That's my big concern.

That concern is exacerbated by the fact that every time a direct question is asked about how Choruss will work, your response is "it's just an experiment, so we don't know." I recognize that it is an experiment and you don't know all of the answers, but it feels very much like a dodge. I'm sure it's a fine line, because there are many details you don't know about, but you've been so vague about everything that it's hard to know what to think. A bunch of universities have agreed to it, but who are they? Why would they agree to test something without the details being clear? Who's setting up what those details are? In Nashville, you said some would involve all students, but at the SanFran Music Tech event you were saying they'd all be voluntary for the users. It just has this quantum feel to it. Any time anyone tries to get specific and warn about a certain aspect, you can just claim "well, we might not do that."

My biggest concern, frankly, is that putting in this inefficient, unnecessary bureaucracy in the middle, we take away resources from the new, more efficient, business models that are working. Both times I've seen you speak about Choruss, you've claimed that those business models won't necessarily be harmed, because they can still be built on top of Choruss -- but that goes against fundamental economics. If people have less money due to Choruss, they're a lot less likely to buy into these other business models.

Now, I'll be the first to admit that competing between business models is a good thing, but the very foundation upon which any sort of collective licensing system is built is to basically get everyone to opt-in, somehow or another -- and thus is set up to crowd out more efficient business models. Otherwise it just doesn't work. So you have every incentive to get third parties (universities, ISPs) to put in place policies that either force, or heavily incentivize, their students/subscribers to adopt a much more inefficient plan. The incentives are skewed. You and the universities/ISPs benefit -- but users (and musicians) do not.

So, with that, let's kick off some questions that I have as "starter" questions, and let's see what else you guys can come up with in the comments. Also, feel free to let me know which of the starter questions/user submitted questions you like best. Once we have a good bunch, I'll send them to Griffin and when we get his answers, I'll post them here. Some of these starter questions are the same ones I asked earlier this year, but I've added a few as well:

Why do we even need such a plan when plenty of musicians are showing that they can craft business models on the open market that work?

How does adding yet another middleman make the music market any more efficient?

What's wrong with letting the market mechanism handle the collection and distribution of the funds directly between musicians and fans?

Will the recording industry promise to stop trying to shut down file sharing systems if this program gets adopted?

Will the recording industry promise to stop pushing for 3 strikes if this program gets adopted?

How will the program prevent the gaming opportunities, where artists set up scripts to constantly reload/download their songs?

Why should music be separated out and subsidized while other industries have to come up with their own business models?

Why should those who don't listen to much music and aren't interested in giving their money to the recording industry be required to participate if their university or ISP decides to make them?

Why should we have a business model focused on negative value (you don't get sued), rather than positive value (here's something scarce that's worth buying)?

The history of collections societies shows that they only tend to expand, and try to capture more rents. Why would Choruss be different?

If Choruss becomes big, won't lots of other industries want in? Movies will want their own version. Then newspapers. And if newspapers are getting their cut, then why not bloggers too? Or blog commenters? Or just any website? The road this leads down is a bad one, where we end up creating massive bureaucracies to subsidize every form of content, rather than focus on business models where those content providers have to provide a reason to buy their particular product. How do you prevent that?

Steve Yelvington, however, has put up a good list of eight challenges that any newspaper or reporter who wants to charge for news should need to respond to in full. His list is focused on those who want to charge for "local" news, but I think it mostly applies to all news:

1. The painful lessons of experience. You might want to look into the history of attempts by general news sites to get consumers to pay for access. Did you actually think we hadn't thought of it, and tried it? Your ignorance of the field and of history is one of the things that makes the online guys reject everything you say. Do you need a list? The burden of research here is on you; it's your idea, after all. But I can tell you where to start.

2. The problem of scale (volume). It takes scale to make paid content work, and you don't have the volume you think you have. Quit making up wishful percentages based on your totally bogus monthly unique-user count ("well, if we get just 10 percent of our 85 zillion unique users to pay"). If you're going to engage in wishful thinking, base it on the cohort of individuals who visit your website more than three times a week. You will be shocked, and dismayed. I've been saying this for years: How can you get them to pay if you can't even get them to visit frequently when it's free?

3. The problem of scale (breadth). The idea of premium paid content (to generate reader revenue) plus free commodity content (to support an ad model) is alluring, but be honest with yourself. Local sites don't have the breadth of content to simultaneously support a paid premium content model, while maintaining enough free pages to harvest the advertising benefits of the open model.

4. Relative strength of the geotargeted advertising model. Ultimately the idea of paid content goes to war against the idea of ad-supported content. In local markets, the ad model is stronger than in global markets. There is, and always will be, a gross surplus of ad inventory on the Internet, and that drives CPMs into the sand. But actual deliverable geotargeted advertising -- and please understand that I'm talking about a reality that includes the entire sales support system, not theory -- is an entirely different matter. Local advertising sold by local sales forces is a substantial revenue stream, and if you're not tapping into that, it's your own fault.

5. Competition. There are plenty of competitors and would-be competitors just waiting for you to strangle your own website so they can step in and steal your future. The larger the market, the more this is true. In some relatively small, isolated markets you may be able to get away with it. For awhile.

6. Lack of unique content, coupled with a false sense of being unique. When you've had a virtual monopoly for decades, you grow arrogant and develop blind spots about your own weaknesses. From the viewpoint of the consumer, you're not nearly as unique and special as you think. And you've exacerbated this problem with your poor pay scales historically, and more recently your vicious cutting aimed at higher-salary veterans.

7. Support costs. If somebody drops 50 cents into a newsbox and it won't open, they just go away mad. If somebody is paying for access to your website and it won't work, they're going to call and suck up 12 dollars of staff time. You have no idea what you're getting into. Computers are evil, perverse devices aimed at driving humans crazy.

8. Your own staff. Your online staff hates the idea and they'll do everything they can to undermine it. Yeah, you can fire them. Why don't you get a table saw and cut off the fingers of your right hand while you're doing it? I've seen this happen time after time as newspapers consolidate print and online staffs, and the "formerly known as print" people conspire to expel the "formerly known as online" people. The result is a great leap backward. It's self-destructive.

I'd add another important factor to this list: What value are you providing that makes it worth paying you? That's the question I keep asking. Newspaper folks seem to think that their content is magically so valuable that everyone will start paying if they charge. There's no evidence that's true at all. So what value are they adding beyond all the other content out there that makes it worth actually paying for?